CA Judge Rules Against Write-In Candidates

Minor parties suffered a setback Aug 9 when Sacramento Superior Court Judge Gail Ohanesian ruled that Prop 60's change to the California Constitution does not trump the Elections Code rule about how many votes a primary write-in candidate must get. The Code sets a threshold equal to 1% of the votes cast for the office in the previous general election. However, Prop 60 says that for "a political party that participated in a primary election for a partisan office", the general election ballot for that office shall include "the candidate who received, at the primary election, the highest vote among that party's candidates". Since the requirements for getting qualified as a write-in candidate are much less than for regular candidates, the LP and other parties were hoping to use Prop 60 to relax ballot access requirements. (California's other ballot-qualified minor parties are: Green, American Independent, Peace and Freedom, and Natural Law.)

Judge Ohanesian wrote that nothing in the Prop 60 language "suggests that it applies to the procedures for write-in candidates". Republican Assembly candidate Raylene Wiesner received almost 700 write-in votes in the June primary and had sued Secretary of State Bruce McPherson to be placed on the November ballot. The Democratic Party sought to join the suit on behalf of three of its candidates, but Ohanesian decided that the Democrats lacked standing to do so for want of "direct and immediate interest in the litigation", because her ruling allegedly would only affect Wiesner.

An appeal seems likely, as there are multiple grounds for disputing Ohanesian's opinion. First, she claimed that "the Analysis by the Legislative Analyst clearly stated that Prop 60 would not require any changes to election procedures." However, the Prop 60 legislative analysis inaccurately simplified the Elections Code when it said "the candidate receiving the most votes among a party’s candidates is that party’s nominee for the general election". Second, she didn't address the possibility that a write-in candidate could win more votes than a regular candidate and yet still be excluded from the general election by the 1% threshold, in contravention of the plain language of the California Constitution.

Perhaps the best argument for upholding Ohanesian would be based on what the Constitution means by "a political party that participated in a primary election for a partisan office". One could argue that a party doesn't participate in the primary for an office if it doesn't have any candidates printed on the primary ballot. However, parties don't place candidates on primary ballots -- that's the job of the candidates themselves. Libertarians have generally been much better at doing so than have members of other minor parties, so if Ohanesian is overruled, it may end up being a mixed blessing for the LP.